Courts Commons^™

Expanding Territorial Bounds: The Recognition Doctrine After Zivotofsky V. Kerry, Nicole Kirkilevich

Loyola of Los Angeles Law Review

No abstract provided.

Evidence Laundering In A Post-Herring World, Kay L. Levine, Jenia I. Turner, Ronald F. Wright

Faculty Articles

The Supreme Court’s decision in Herring v. United States authorizes police to defeat the Fourth Amendment’s protections through a process we call evidence laundering. Evidence laundering occurs when one police officer makes a constitutional mistake when gathering evidence and then passes that evidence along to a second officer, who develops it further and then delivers it to prosecutors for use in a criminal case. The original constitutional taint disappears in the wash.

Courts have allowed evidence laundering in a variety of contexts, from cases involving flawed databases to cases stemming from faulty judgments and communication lapses in law enforcement teams. …

Issue 2: Table Of Contents

University of Richmond Law Review

No abstract provided.

Institutional Competence And Civil Rules Interpretation, Lumen N. Mulligan, Glen Staszewski

Faculty Works

No abstract provided.

Will Work For Free: The Legality Of Unpaid Internships, Nicole M. Klinger

Brooklyn Journal of Corporate, Financial & Commercial Law

This Note addresses the current ambiguity in the law regarding if unpaid interns are employees under the Fair Labor Standards Act. The Note explores relevant case law throughout the circuit courts, but primarily focuses on the Second Circuit’s recent decision in Glatt v. Fox Searchlight Pictures. It argues that the primary benefits test created by the Second Circuit in Glatt does not adequately protect unpaid interns nor does it inform employers of the standards they need to meet in order to adopt legal unpaid internship programs. Instead, courts should adopt a clearer, more rigid test that finds an intern not …

From Ripe To Rotten: An Examination Of The Continued Utility Of The Ripeness Doctrine In Light Of The Modern Standing Doctrine, Michael A. Delgaudio

Georgia Law Review

First year law students are generally taught that the justiciability doctrines of standing and ripeness perform distinct functions that work together to help courts determine whether an Article III "case or controversy" exists in particular suits. The standing doctrine, it is said, assists courts in this inquiry by determining who can bring suit, whereas the ripeness doctrine assists them by determining when someone can bring suit. This theoretical distinction in the doctrines' functions is based on the original forms the standing and ripeness doctrines took. Over the course of the past century, however, the Supreme Court has altered the standing …

The Concept Of The Speech Platform: Walker V. Texas Division, Abner S. Greene

Faculty Scholarship

In Walker, the Court deemed Texas’ specialty license plate program government speech, and thus applied no First Amendment review to the state’s refusal to allow a Confederate battle flag specialty plate, even though the reason for the refusal was that the plate was offensive. The dissent considered this unconstitutional viewpoint discrimination in a limited public forum. This article argues that the Walker result was correct, but for the wrong reason. Government should have the power to forbid hateful or vulgar speech from limited public forums such as specialty or vanity license plates, transit ads, and after-school extracurricular activities, even though …

Inside The Taft Court: Lessons From The Docket Books, Barry Cushman

Journal Articles

For many years, the docket books kept by certain of the Taft Court Justices have been held by the Office of the Curator of the Supreme Court. Though the existence of these docket books had been brought to the attention of the scholarly community, access to them was highly restricted. In April of 2014, however, the Court adopted new guidelines designed to increase access to the docket books for researchers. This article offers a report and analysis based on a review of all of the Taft Court docket books held by the Office of the Curator, which are the only …

Inherent National Sovereignty Constitutionalism: An Original Understanding Of The U.S. Constitution, Robert J. Kaczorowski

Faculty Scholarship

No abstract provided.

Policing In The Era Of Permissiveness: Mitigating Misconduct Through Third-Party Standing, Julian A. Cook Iii

Brooklyn Law Review

On April 4, 2015, Walter L. Scott was driving his vehicle when he was stopped by Officer Michael T. Slager of the North Charleston, South Carolina, police department for a broken taillight. A dash cam video from the officer’s vehicle showed the two men engaged in what appeared to be a rather routine verbal exchange. Sometime after Slager returned to his vehicle, Scott exited his car and ran away from Slager, prompting the officer to pursue him on foot. After he caught up with Scott in a grassy field near a muffler establishment, a scuffle between the men ensued, purportedly …

Credit Discrimination Based On Gender: The Need To Expand The Rights Of A Spousal Guarantor Under The Equal Credit Opportunity Act, Allen Abraham

Brooklyn Journal of Corporate, Financial & Commercial Law

This Note focuses on the definition of “applicant” as defined in the Equal Credit Opportunity Act (ECOA) and Regulation B. Specifically, this Note explores the expanded protections offered by the ECOA to spousal guarantors, after the Federal Reserve Board (FRB) expanded the definition of “applicant” by promulgating Regulation B. However, after a circuit split, where the Eighth Circuit, in Hawkins v. Community Bank of Raymore, held that a guarantor was not an “applicant” per the ECOA’s definition and the Sixth Circuit, in RL BB Acquisition, LLC v. Bridgemill Commons Development Group, LLC, followed Regulation B’s expansion of the definition of …

Switch Hitters: How League Involvement In Daily Fantasy Sports Could End The Prohibition Of Sports Gambling, Jordan Meddy

Brooklyn Journal of Corporate, Financial & Commercial Law

Whether in the form of lotto tickets or casino table games, gambling is legally permitted in some way in virtually every U.S. state. Yet, in all but a handful of jurisdictions, federal law prohibits wagering on sporting events or professional athletes in any form. Several economically challenged states, particularly New Jersey, have been trying to authorize sports gambling within their borders as a way to raise tax revenues and support their local gambling industries. While these attempts have thus far been unsuccessful, Daily Fantasy Sports have simultaneously experienced a meteoric rise, becoming a multi-billion dollar industry. This Note examines the …

Putting The Commerce Back In The Dormant Commerce Clause: State Taxes, State Subsidies, And Commerce Neutrality, Ryan Lirette, Alan D. Viard

Journal of Law and Policy

The unpredictability of the Supreme Court’s dormant Commerce Clause (“DCC”) jurisprudence continues to draw trenchant criticism from commentators and the Justices themselves, as the Court remains unable to explain which state taxes and subsidies impede interstate commerce. We show that these problems can be resolved by a Commerce Neutrality framework requiring that state taxes and subsidies provide a combined treatment of inbound and outbound transactions at least as favorable as their treatment of intrastate transactions. This simple test has an economic foundation because taxes and subsidies that violate it create incentives to engage in intrastate rather than interstate transactions. The …

In The Shadows Of Sunlight: The Effects Of Transparency On State Political Campaigns, Abby K. Wood, Douglas M. Spencer

Publications

In recent years, the courts have invalidated a variety of campaign finance laws while simultaneously upholding disclosure requirements. Courts view disclosure as a less-restrictive means to root out corruption while critics claim that disclosure chills speech and deters political participation. Using individual-level contribution data from state elections between 2000 and 2008, we find that the speech-chilling effects of disclosure are negligible. On average, less than one donor per candidate is likely to stop contributing when the public visibility of campaign contributions increases. Moreover, we do not observe heterogeneous effects for small donors or ideological outliers despite an assumption in First …

Prior Consistent Statements: The Dangers Of Misinterpreting Recently Amended Federal Rule Of Evidence 801(D)(1)(B), Laird C. Kirkpatrick, Christopher B. Mueller

Publications

A recent amendment to Federal Rule of Evidence 801(d)(1)(B) expands the situations in which prior consistent statements by testifying witnesses can be used as substantive evidence, and not merely as rehabilitating evidence. In this piece, the Authors argue that the revised rule may mislead judges and lawyers to conclude that prior consistent statements are always usable as substantive evidence when offered to rehabilitate a witness. Nothing could be further from the truth. The intent, although hard to discern on the face of the revised rule, is only to allow substantive use of consistent statements that are otherwise admissible to rehabilitate …

The High Power Of The Lower Courts, Doni Gewirtzman

Other Publications

No abstract provided.

The Supreme Assimilation Of Patent Law, Peter Lee

Michigan Law Review

Although tensions between universality and exceptionalism apply throughout law, they are particularly pronounced in patent law, a field that deals with highly technical subject matter. This Article explores these tensions by investigating an underappreciated descriptive theory of Supreme Court patent jurisprudence. Significantly extending previous scholarship, it argues that the Court’s recent decisions reflect a project of eliminating “patent exceptionalism” and assimilating patent doctrine to general legal principles (or, more precisely, to what the Court frames as general legal principles). Among other motivations, this trend responds to rather exceptional patent doctrine emanating from the Federal Circuit in areas as varied as …

Confirming Circuit Judges In A Presidential Election Year, Carl W. Tobias

Law Faculty Publications

Over 2016, President Barack Obama tapped accomplished, mainstream candidates for seven of twelve federal appeals court vacancies. Nevertheless, the Senate Judiciary Committee has furnished a public hearing and vote for merely three nominees and did not conduct a hearing for any other prospect this year. 2016 concomitantly is a presidential election year in which appointments can be delayed and stopped—a conundrum that Justice Antonin Scalia’s Supreme Court vacancy exacerbates. Because appellate courts comprise tribunals of last resort for practically all cases and critically need each of their members to deliver justice, the appointments process merits scrutiny. The Essay first evaluates …

Extralegal Supreme Court Policy-Making, Joëlle Anne Moreno

William & Mary Bill of Rights Journal

The Colbert Report aired its final episode on December 18, 2014.1 Nine years earlier, on the first episode, Stephen Colbert coined the word “truthiness.” Truthiness satirized contemporary disinterest in empirical information in a country increasingly “divided between those who think with their head and those who know with their heart.” Truthiness was not just the Merriam-Webster word of the year. Over the past decade, it has been the unspoken mantra of reporters who give equal time to climate science denialists, faith healers, and vaccine refusers. When Justices of the Supreme Court decide questions of scientific or empirical fact—such as whether …

When Is An Agency A Court? A Modified Functional Approach To State Agency Removal Under 28 U.S.C. § 1441, Nicholas Jackson

University of Michigan Journal of Law Reform

This Note argues that courts should interpret 28 U.S.C. § 1441, which permits removal from state court to federal court, to allow removal from state administrative agencies when the agency performs “court-like functions.” Circuits that apply a literal interpretation of the statute and forbid removal from state agencies should adopt this “functional” approach. The functional approach, which this Note calls the McCullion-Floeter test, should be modified to comport with legislative intent and public policy considerations: first, state agency adjudications should not be removable when the adjudication requires technical expertise, which federal courts cannot obtain because they adjudicate cases in a …

Communicating The Canons: How Lower Courts React When The Supreme Court Changes The Rules Of Statutory Interpretation, Aaron-Andrew P. Bruhl

Faculty Publications

No abstract provided.

The Semi-Retirement Of Senior Supreme Court Justices: Examining Their Service On The Courts Of Appeals, Jon A. Gryskiewicz

Seton Hall Circuit Review

No abstract provided.

Front Matter

University of Richmond Law Review

No abstract provided.

Standing In The Way Of The Ftaia: Exceptional Applications Of Illinois Brick, Jennifer Fischell

Michigan Law Review

In 1982, Congress enacted the Foreign Antitrust Trade Improvements Act (FTAIA) to resolve uncertainties about the international reach and effect of U.S. antitrust laws. Unfortunately, the FTAIA has provided more questions than answers. It has been ten years since the Supreme Court most recently interpreted the FTAIA, and crucial questions and circuit splits abound. One of these questions is how to understand the convergence of the direct purchaser rule (frequently referred to as the Illinois Brick doctrine) and the FTAIA. Under the direct purchaser rule, only those who purchase directly from antitrust violators are typically permitted to sue under section …

Balancing Effects Across Markets, Daniel A. Crane

Articles

In Philadelphia National Bank (PNB), the Supreme Court held that it is improper to weigh a merger's procompetitive effects in one market against the merger's anticompetitive effects in another. The merger in question, which ostensibly reduced retail competition in the Philadelphia area, could not be justified on the grounds that it increased competition against New York banks and hence perhaps enhanced competition in business banking in the mid-Atlantic region. I will refer to the Supreme Court's prohibition on balancing effects across markets as a "market-specificity" rule. Under this rule, efficiencies that may counterbalance anticompetitive aspects must be specific to …

Brief Of Law Professors Bruce P. Frohnen, Robert P. George, Alan J. Meese, Michael P. Moreland, Nathan B. Oman, Michael Stokes Paulsen, Rodney K. Smith, Steven D. Smith, And O. Carter Snead As Amici Curiae In Support Of Petitioners, John D. Adams, Matthew A. Fitzgerald, O. Carter Snead

Court Briefs

No. 15-105
Little Sister of the Poor Home for the Aged v. Sylvia Mathews Burwell

On Petition for a Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit

From the Summary of Argument

Suppose a federal law required government officials to enter a Catholic church and use church property to distribute contraceptives and abortifacients over church’s objection. Such a law would surely burden the church’s religion, even if the government paid for the objectionable medications and compensated the church for the use of its resources. By commandeering church property, such a law would force the …

Clouds In The Crystal Ball: Presidential Expectations And The Unpredictable Behavior Of Supreme Court Appointees, Christopher E. Smith, Kimberly A. Beuger

Akron Law Review

This article will analyze the pitfalls that presidents face in hoping that their nominees' judicial performance will comport with presidential expectations.

The Nlrb, The Courts, The Administrative Procedures Act, And Chevron: Now And Then, Theodore J. St. Antoine

Articles

Decisions of the National Labor Relations Board (NLRB), like those of other administrative agencies, are subject to review by the federal judiciary. Standards of review have evolved over time. The Administrative Procedure Act of 1946 provides that administrative decisions must be in accord with law and required procedure, not arbitrary or capricious, not contrary to constitutional rights, within an agency's statutory jurisdiction, and supported by substantial evidence. In practice, more attention is paid to two Supreme Court decisions, Skidmore (1944) and Chevron (1984). For many years Chevron seemed the definitive test. A court must follow a clear intent of Congress, …

Too Many Cooks In The Climate Change Kitchen: The Case For An Administrative Remedy For Damages Caused By Increased Greenhouse Gas Concentrations, Benjamin Reese

Michigan Journal of Environmental & Administrative Law

Recent federal and state court decisions have made clear that federal common law claims against emitters of greenhouse gases are not sustainable; however, those same courts seem to have given state common law tort claims the green light, at least if the claims are brought in the state where the polluters are located. This Note contends that such suits are not an adequate remedy for those injured by climate change because they will face nearly insurmountable barriers in state court, and because there are major policy-level drawbacks to relying on state tort law rather than a federal solution. This Note …

Unpacking Eme Homer: Cost, Proportionality, And Emissions Reductions, Daniel A. Farber

Michigan Journal of Environmental & Administrative Law

Interstate air pollution can prevent even the most diligent downwind state from attaining the air quality levels required by federal law. Allocating responsibility for emissions cuts when multiple upwind states contribute to downwind air quality violations presents a particularly difficult problem. Justice Ginsburg’s opinion for the Court in EPA v. EME Homer City Generator, L.P., gives EPA broad discretion to craft regulatory solutions for this problem. Although the specific statutory provision at issue was deceptively simple, the underlying problem was especially complex because of the large number of states involved. Indeed, neither the majority opinion nor the dissent seems to …